Excerpt: - motor vehicles act, 1988
[c.a. no. 59/1988]section 173(1) proviso; [d. biswas, amitava roy & i.a.ansari, jj] appeal without statutory deposit but within limitation/or extended period of limitation maintainability - held, if the provision of a statute speaks of entertainment of appeal, it denotes that the appeal cannot be admitted to consideration unless other requirements are complied with. the provision of sub-section (1) of section 173 permits filing of an appeal against an award within 90 days with a rider in the first proviso that such appeal filed cannot be entertained unless the statutory deposit is made. the period of limitation is applicable only to the filing of the appeal and not to the deposit to be made. it, therefore, appears that an appeal filed under section 173 cannot..........thought that that section was not exhaustive of the principle of autre fois acquit and that the trial in respect of the same facts on the second occasion, after the first trial has ended in acquittal, would be barred on general principles. with respect, i have grave doubts about extending the principle of section 403 cr. p. c. beyond the terms of that section.8. in a full bench decision of the calcutta high court reported in purnananda das v. emperor air 1939 cal 65 (c) it was pointed out:'the language of the section (referring to section 403) cannot be stretched, nor the principles extended so as to give an accused the benefit of the principle underlying the provisions of that section, as it would be bewildering and might result in great injustice to the community at large'.the.....

Judgment:

Narasimham, C.J.

1. This is a revision petition against the order of the Sub-Magistrate of Kodala, summoning the petitioners for an offence under Section 380 I. P. C.

2. On 27-4-1956 the opposite party Rameswar Mohapatra filed a complaint in the Court of the Sub-Magistrate of Kodala against the petitioners, alleging that on 25-4-1958 petitioner Narasingh Rout and his helpers broke open the lock put by the opposite party to his house in village Sikulia, entered the house, took away food grains and other articles kept there, and put their own lock. The learned Magistrate sent the petition to the local Police for immediate enquiry and report. It was registered as C.C. No. 14 of 1956.

The Police report was to the effect that there was prima facie evidence to show that on 25-4-1956 the lock put by the opposite party was broken open and petitioner Narasingha Rout put his own lock to the house. As regards the removal of the properties, as mentioned in the complaint petition, the Police report was to the effect that this allegation was not proved well. On receipt of this report the learned Sub-Magistrate thought that there was a prima facie case under Section 426 I. P. C. against all the petitioners and hence issued summons against them. On 21-9-1956, the complainant (opposite party) was absent and thereupon the learned Magistrate acquitted all the accused persons, under Section 247 Cr. P. C.

On 6-10-1956, the same complainant filed another petition before the Taluk Magistrate of Kodala (C.C. No. of 1956) requesting him to issue process against the petitioners for an offence under Section 380 I. P. C. in respect of the removal offood grains and other articles from the house on 25-4-1956. The learned Magistrate felt some doubt as to whether a second case, on the same facts would lie in view of the previous acquittal and issued preliminary notice to the petitioners for decision of this question.

On 7-12-1956 after hearing the parties and perusing the records of the previous case he thought that a second case would lie for the offence under Section 380 I. P. C. in view of Sub-section (2) of Section 403, Cr. P. C. and directed issue of process against all the petitioners for an offence under Section 380 I. P. C. The petitioners went up in revision to the Sessions Judge who upheld the order of the Magistrate.

3. The main question for consideration is whether in view of the acquittal of the petitioners under Section 247 Cr. P. C. on 21-9-1956 in C. C. No. 14 of 1956 a fresh case for an offence under Section 380 I. P. C. could be started against them in C. O. No. 70 of 1956 on the same facts. In the first complaint the facts alleged were that (i) the petitioners broke open the lock put by the opposite party and (ii) they removed, food grains and other articles from the house of the opposite party. The enquiry report was to the effect that the removal of food grains and other articles was not proved, but that the breaking open of the lock of the opposite party was established.

The Magistrate then took cognizance only of the offence under Section 426 I. P. C. which ended in acquittal due to the absence of the complainant on the date fixed. In the second complaint also, the same facts were alleged, viz., the breaking open of the lock and the removal of articles from the house, and the learned Magistrate thought that he could take cognizance of the offence under Section 380 I. P. C.

4. Sub-section (1) of Section 403 Cr. P. C. says that a person who has once been acquitted of an offence cannot be tried again for the same offence, nor on the same facts for any other offence for which a different charge from the one made against him might have been made, under Section 236 or for which he might have been convicted, under Section 237, Cr. P. C. Thus, the express terms of this sub-section are to the effect that after the first trial and acquittal a fresh trial cannot be held on the same facts for any other offence for which he might have been charged, under Section 236, or convicted, under Section 237, Cr. P. C. It does not support the view that on the same facts a fresh trial cannot be held under any circumstances.

On the other hand, Sub-section (2) of that Section says that the previous acquittal in respect of an offence will not be a bar to a fresh trial for any distinct offence for which a separate charge might have been made against him in the former trial, under the provisions of subsection (1) of Section 235, Cr. P. C. Hence if the two sub-sections of Section 403 Cr. P. C. are construed together, the conclusion is that if in the first trial an alternative charge could have been made, under Section 236, Cr. P. C. or the accused could have been convicted without such a charge, under Section 237, Cr. P. C. the second trial on the same facts would be barred. But if, in the first trial, a separate charge under Sub-section (1) of Section 235, Cr. P. C. might have been framed, a second trial for that offence will not be barred.

5. The essential distinction between Sub-section (1) of Section 235 and Section 236, Cr. P. C. is well known. In both those provisions the expression'series of acts' occurs. If in those series of acts which form one transaction more offences than one are committed, the accused may be charged under Sub-section (1) of Section 235. But if, when the series of acts are considered together, it is doubtful as to which of the several, offences the acts proved constitute, he may be charged alternatively under Section 236 Cr. P.C.; or he may be convicted under Section 237 Cr. P.C. even though there may not be a specific charge in respect of every one of those offences.

Thus the applicability of Section 236 Cr. P. C. is limited to those instances where there is some doubt as to the offences which the facts proved will constitute. The illustrations to Section 236 make this position absolutely clear. If, however, there is no doubt whatsoever and the series of acts proved establish several distinct offences, separate charges in respect of those offences could be framed only under Sub-section (1) of Section 235 Cr. P. C.

6. In the instant case neither Section 236 nor Section 237 Cr. P. C. will be applicable. The series of acts alleged constitute two distinct offences, namely, (1) mischief to the lock of the opposite party and (2) theft from the house of the opposite party. The Court can have no doubt whatsoever as to whether those acts constitute either an offence under Section 426 I. P. C. or an offence under Section 380 I. P. C. Hence, in the first trial itself the petitioners could have been charged under Sub-section (1) of Section 235 Cr. P. C. for the two offences under Sections 426 and 380, I. P. C. if the Magistrate concerned had thought it fit to take cognizance of both the offences. Sub-section (2) of Section 403 Cr. P. C. would therefore apply and there is no bar to a second trial for the offence under Section 380 I. P. C.

7. Mr. Panda referred me to two decisions in support of his contention that a fresh trial against the petitioners, on the basis of the second complaint, is barred. The first is Fula Bewa v. Banamali Das, AIR 1953 Orissa 257 (A) where it was held that if there is an acquittal on a previous occasion, in respect of an offence under Section 426 I. P. C. a fresh trial on the same facts for an offence under Section 352 I. P. C. would be barred.

That decision however does not discuss the fundamental distinction between Sub-section (1) and Sub-section (2) of Section 403 Cr. P. C. with special reference to the provisions of Sub-section (1) of Section 235 and of Section 236 Cr. P. C. and is not very helpful. The other case, which is an earlier Patna decision reported in Gouri Shankar v. Emperor, AIR 1947 Pat 290 (B) is on similar lines, but there the learned Judge did not follow the very letter of Section 403 Cr. P. C. but thought that that Section was not exhaustive of the principle of autre fois acquit and that the trial in respect of the same facts on the second occasion, after the first trial has ended in acquittal, would be barred on general principles. With respect, I have grave doubts about extending the principle of Section 403 Cr. P. C. beyond the terms of that Section.

8. In a Full Bench decision of the Calcutta High Court reported in Purnananda Das v. Emperor AIR 1939 Cal 65 (C) it was pointed out:

'The language of the Section (referring to Section 403) cannot be stretched, nor the principles extended so as to give an accused the benefit of the principle underlying the provisions of that Section, as it would be bewildering and might result in great injustice to the community at large'.

The analogy derived from Section 11 of the Civil Procedure Code may not be appropriate. In this connection the decisions reported in Bijoy Krishna Pal v. Balai Chand, 20 Cr. LJ 43: (AIR 1919 Cal 1063) (D) and Kistapada Bhakta v. State, AIR 1954 Cal 297 (E) may also be seen.

9. But this does not conclude the matter. A Court of revision is concerned not only with the legality of the proceeding before the lower Court, but also with the propriety of the order passed under the particular circumstances of the case. There may be occasions when it would not be appropriate to order a second trial even though the second trial may not be barred by the letter of Section 403, Criminal P. C. To quote an extreme instance, supposing in a petition of complaint, two or three distinct offences are alleged and the trying. Court frames a charge only in respect of one of the offences though he might have validly framed separate charges under Sub-section (1) of Section 235, Criminal P. C., for all the offences.

When that trial ends in acquittal, the Magistrate may legally start a fresh trial in respect of the second offence and when that trial also ends in acquittal he may start a third trial in respect of the third offence, even though all the offences took place in the course of one transaction. Such successive trials will be extremely harassing and highly prejudicial to the accused and should not be permitted. This principle was laid down in Jagadish Prosad v. Emperor, AIR 1938 Cal 697 (F) and reiterated in Emperor v. Anant Narayan, AIR 1945 Bom 413 (G).

10. In the instant case, the aforesaid principle would apply. In the first complaint case (C. C. No. 14 of 1956) the learned Magistrate refused to take cognizance of the offence under Section 380, I. P. C., because the Police who made local enquiries reported that the allegation of removal of food grains and other articles from the house of the complainant, was not proved. He seems to have believed only that portion of the complaint which dealt with the breaking open of the lock of the opposite party by the petitioners. Hence, when the complainant filed a fresh complaint before the same Magistrate on 6-10-1956 there was absolutely no material for him to change his previous view and to hold that a prima facie case under Section 380, I. P. C., was made out.

It is true that an order refusing to issue process in respect of a particular offence is not a 'judgment' within the meaning of Section 369, Criminal P.C., and may be revised in appropriate cases for adequate reasons. But the Magistrate has given no reasons in his order dated 7-12-1956 for revising his previous order apart from saying that Sub-section (1) of Section 403, Criminal P. C., has no application to the second case. If he was dissatisfied with the first enquiry by the Police he should have directed a further enquiry before putting the accused persons to the harassment of a second trial.

11. I am therefore of opinion that thoughSub-section (1) of Section 403, Criminal P. C., may not, interms, apply, the Magistrate's order issuing process against the petitioners for an offence underSection 380, I. P. C., was not justified on the materialsavailable before him. The proceedings againstthe petitioners are therefore quashed.